11 "Faux Pas" That Actually Are Okay To Create With Your Malpractice Attorney

Medical Malpractice Lawsuits

Attorneys are in a fiduciary position with their clients and are expected to behave with care, diligence and skill. However, like all professionals, attorneys make mistakes.

A mistake made by an attorney can be considered an act of malpractice. To prove that legal malpractice has occurred, the aggrieved person must demonstrate obligation, breach, causation and damage. Let's look at each one of these aspects.

Duty

Doctors and other medical professionals swear to use their education and expertise to treat patients and not to cause further harm. Duty of care is the foundation for a patient's right to compensation in the event of injury due to medical negligence. Your attorney can assist you determine if your doctor's actions violated the duty of care, and whether those breaches caused injury or illness to you.

To prove a duty of care, your lawyer has to show that a medical professional had an official relationship with you that were bound by a fiduciary duty to exercise a reasonable level of competence and care. This can be proved through eyewitness testimony, doctor-patient records, and expert testimony of doctors who have similar education, experience and malpractice lawsuits training.

Your lawyer will also need to establish that the medical professional breached their duty of care in not adhering to the accepted standards of their area of expertise. This is often referred to as negligence. Your attorney will compare the defendant's behavior to what a reasonable individual would do in the same situation.

Your lawyer must also show that the breach of the defendant's duty directly contributed to your loss or injury. This is referred to as causation. Your lawyer will make use of evidence such as your medical documents, witness statements and expert testimony to demonstrate that the defendant's failure to live up to the standards of care in your case was the direct cause of your loss or injury.

Breach

A doctor is obligated to patients to perform duties of care that conform to the highest standards of medical professionalism. If a doctor doesn't meet these standards, and the resulting failure causes an injury that is medically negligent, negligence could result. Expert witness testimony from medical professionals that possess similar qualifications, training and skills can help determine the standard of care in a given situation. Federal and state laws, along with policies of the institute, help define what doctors are expected to do for certain kinds of patients.

In order to win a malpractice claim the evidence must prove that the doctor violated his or her duty to care and that this violation was the primary cause of an injury. In legal terms, this is known as the causation component and it is crucial to establish. For example in the event that a damaged arm requires an x-ray the doctor must properly place the arm and put it in a cast to ensure proper healing. If the doctor is unable to do this and the patient suffers a permanent loss in the use of the arm, then malpractice may have occurred.

Causation

Legal malpractice claims are based on evidence that the attorney made mistakes that caused financial losses to the client. For example the lawyer does not file a lawsuit within the statute of limitations, leading to the case being lost forever, the injured party may bring legal malpractice claims.

It is crucial to realize that not all mistakes by attorneys constitute malpractice. Errors involving strategy and planning are not generally considered to be malpractice and lawyers have the ability to make decisions based on their judgments as long as they're reasonable.

The law also allows attorneys considerable latitude to not perform discovery on behalf of a client as long as the failure was not unreasonable or a case of negligence. Legal malpractice is committed through the failure to uncover important documents or facts, like medical reports or witness statements. Other examples of malpractice are the failure to include certain defendants or claims, for instance forgetting a survival count for the case of wrongful death or the constant failure to communicate with clients.

It's also important to keep in mind that it has to be proven that if it weren't the negligence of the lawyer, the plaintiff would have won the underlying case. In the event that it is not, the plaintiff's claim for malpractice will be rejected. This requirement makes the process of bringing legal malpractice claims complicated. This is why it's important to find an experienced attorney to represent you.

Damages

A plaintiff must show that the attorney's actions resulted in actual financial losses in order to win a legal malpractice lawsuit. This must be shown in a lawsuit using evidence such as expert testimony, correspondence between the client and attorney, billing records and other evidence. In addition the plaintiff must demonstrate that a reasonable lawyer would have avoided the harm that was caused by the negligence of the attorney. This is known as proximate cause.

The causes of malpractice vary. The most frequent errors include: not meeting the deadline or statute of limitations; failing to perform an investigation into a conflict in a case; applying the law incorrectly to a client's particular situation; and breaking an obligation of fiduciary (i.e. the commingling of funds from a trust account an attorney's own accounts, mishandling a case and not communicating with the client are all examples of malpractice.

In most medical malpractice cases the plaintiff will seek compensation damages. These damages compensate the victim for out-of-pocket expenses as well as expenses like medical and hospitals bills, equipment costs to aid in recovery and lost wages. Victims can also seek non-economic damages, such as pain and discomfort and loss of enjoyment their lives, and emotional stress.

In a lot of legal malpractice cases, there are claims for punitive or compensatory damages. The first compensates the victim for the damages caused by the negligence of the attorney while the latter is designed to deter future malpractice on the defendant's part.